Manna v Lotter and Another

• Jurisdiction: South Africa
• Citation: 2007 (4) SA 315 (C)

Manna v Lotter and Another
2007 (4) SA 315 (C)

2007 (4) SA p315

Citation	2007 (4) SA 315 (C)
Case No	9708/04
Court	Cape Provincial Division
Judge	Griesel J
Heard	February 23, 2007
Judgment	March 8, 2007
Counsel	J C Swanepoel for the applicant.; N J Saunders for the respondents.

Flynote : Sleutelwoorde B

Contract — Formation of — Offer and acceptance — Acceptance — What constitutes — Late or irregular acceptance — Lapse of offer prior to acceptance by seller (offeree) — Purchaser (offeror) electing to accept seller's irregular 'acceptance' and seeking to bind seller, claiming specific performance C under contract — Whether seller entitled to rely on own late acceptance to avoid contract where purchaser clearly having intended to be bound by agreement — Expiry date stipulated — Clause intended for sole benefit of purchaser — Purchaser having election to accept late or irregular acceptance by seller — Entitled to specific performance.

Jurisdiction — Attachment ad fundandam jurisdictionem of immovable D property within Court's territory — Claim for transfer of immovable property against peregrinus — Court within whose territorial jurisdiction immovable property being situate always having jurisdiction — Irrelevant whether defendant incola or peregrinus, or that not physically present within area over which court exercising jurisdiction — Attachment unnecessary. E

Headnote : Kopnota

While the proposition that an offer lapses if it is not accepted within the prescribed time correctly summarises the position where the offeror elects to reject the late 'acceptance' of an offer, it is stated too widely and is potentially misleading where the offeror has elected to accept the late F 'acceptance' and seeks to bind the offeree. In such a situation, the question is whether the offeree can avoid the agreement by relying on her own late 'acceptance' of the offer. (Paragraphs [13] - [14] at 321A - D.) Rather than resort to the (artificial) construction based on an alleged counter-offer, a better approach would be to regard an expiry date inserted into an agreement as a stipulation for the exclusive benefit of the offeror, which G

2007 (4) SA p316

benefit he can elect to waive - in the same way that he can waive the benefit A of the traditional 'bond clause'. The offeror - but not the offeree - has an election to accept or reject an irregular 'acceptance' of his offer. Obviously such election will have to be exercised and communicated to the offeree within a reasonable time, depending on the circumstances. (Paragraphs [22] - [26] at 323C - 324A, paraphrased.)

The applicant/purchaser launched an application (which was served on the B respondent/seller, a peregrinus of South Africa, in Wales after an application for edictal citation was granted) to compel the seller to sign the necessary documents so that a transfer of land could be registered. Although the seller signed acceptance of the purchaser's offer only after the contract's expiry date, both parties initially believed that they had concluded a valid and C binding contract. However, when the present proceedings were launched, the seller contended for the first time that the sale was void, inter alia, because:

1.

The Court had no jurisdiction as the applicant had failed to attach the property to confirm jurisdiction;

2.

the buyer had failed to obtain the necessary bond approval timeously; D and

3.

she had accepted the offer after it had already lapsed and therefore no binding agreement had come into existence.

As to 1:

Held, that the law was that, generally speaking, in any claim relating to immovable property - whether in rem or in personam - the court within E whose territory the property was situated always had jurisdiction to entertain the claim, and it was then irrelevant whether the defendant was an incola or a peregrinus. It was therefore not necessary for the purchaser in the present case to have applied for attachment of the seller's property in order to confirm the jurisdiction of the High Court. The property in question was situated within the High Court's area of jurisdiction and it was immaterial F whether the respondent was an incola or a peregrinus. The jurisdictional objection could not succeed. (Paragraphs [7], [10] and [11] at 319C - D, 320C and 320F - G.)

As to 2:

Held, that it is trite law that a bond clause is to the benefit of the purchaser and capable of unilateral waiver, provided such waiver takes place before the G date for fulfilment of the condition. On the facts, the purchaser had waived the benefit. (Paragraph [32] at 324I - 325A.)

As to 3:

Held, that, in the present case, the offeror had elected to accept the offeree's late acceptance of his offer and was seeking to hold the offeree bound by her late acceptance. The offeree, on the other hand, was seeking to rely on her own H late acceptance to avoid the agreement. (Paragraph [13] at 321A - C.)

Held, further, that the expiry date inserted into the agreement was a stipulation for the exclusive benefit of the offeror, which benefit he could elect to waive. Thus, the offeror - but not the offeree - had an election to accept or reject an irregular 'acceptance' of his offer. Obviously, that election had to be I exercised and communicated to the seller within a reasonable time, depending on the circumstances. (Paragraph [26] at 323I - 324A.)

Held, further, that the purchaser's election to treat the acceptance of the offer as effectual was therefore legally sound and binding on the seller. The agreement was therefore valid and enforceable and the purchaser was entitled to succeed in his claim for specific performance. (Paragraphs [29] J and [36] at 324F and 325F.).

2007 (4) SA p317

Ordered, accordingly, that the respondent facilitate transfer of the property to the A applicant against payment of the purchase price and transfer costs. (Paragraph [40] at 326D.)

Cases Considered

Annotations

Reported cases

Ariefdien v Soeker 1982 (2) SA 570 (C): compared B

Bezuidenhout v Ferreira 1967 (4) SA 417 (A): referred to

Bloom v American Swiss Watch Co, The 1915 AD 100: compared

Dietrichsen v Dietrichsen 1911 TPD 486: compared

Ewing MacDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): distinguished

Jackaman and Others v Arkell 1953 (3) SA 31 (T): dictum at 34G applied C

Laws v Rutherfurd 1924 AD 261: referred to

Mittermeier v Skema Engineering (Pty) Ltd 1984 (1) SA 121 (A): referred to

Palm v Simpson (1848) 3 Menz 565: applied

Phillips v Townsend 1983 (3) SA 403 (C): dictum at 409A - E followed and applied

Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A): dicta at 562A and 563C D applied

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): distinguished

Trans-Natal Steenkoolkorporasie Bpk v Lombaard en 'n Ander 1988 (3) SA 625 (A): dictum at 640B - C applied

Van Jaarsveld v Coetzee 1973 (3) SA 241 (A): dictum at 244G applied E

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): referred to

Westmore v Crestanello and Others 1995 (2) SA 733 (W): dictum at 735H - 737J applied.

Case Information

Application to compel specific performance of a deed of sale for the F transfer of immovable property situated within the Court's area of jurisdiction. The facts appear from the judgment of Griesel J.

J C Swanepoel for the applicant.

N J Saunders for the respondents.

Cur adv vult. G

Postea (March 8).

Judgment

Griesel J:

[1] This is an application to enforce specific performance of an alleged H deed of sale entered into between the applicant (the buyer) and the first respondent (the seller) during November 2003 in respect of erf 3649 Sedgefield (the property). The second respondent is the Registrar of Deeds, who played no active part in these proceedings.

Factual background I

[2] The seller, a peregrinus of the Republic who is permanently resident in Wales, is the owner of the property. During October 2003 she mandated an estate agent to find a buyer for the property. In due course, the agent procured a written offer from the present buyer to purchase the property for a price of R485 000. The offer to purchase was signed J

2007 (4) SA p318

Griesel J

by A the buyer in Pretoria on 6 November 2003 and was returned by fax to the agent in Sedgefield, where the seller's husband signed it on the same date. (It is common cause, however, that he was not a party to the transaction and that his signature is legally irrelevant.) After filling in various details which had until then been left blank in the offer - such as the identity of the seller, the name of the seller's conveyancers, and so B on - the agent faxed the document to the respondent in Wales, who signed and returned it to the agent on 12 November 2003.

[3] One of the blank items completed by the agent, was the expiry date in clause 10, which reads as follows (the italicised portion having been filled in by the agent in manuscript): C

'10. Validity & Entire Contract

This offer is irrevocable and expires at noon on the 8th November 2003 and on acceptance shall become a binding Agreement of Sale irrespective of whether the Purchaser has been notified of such acceptance or not. . . .'

[4] Notwithstanding the fact that the offer was only 'accepted' by the D seller on 12 November, ie after it had lapsed, both parties initially believed that a valid and binding agreement had been concluded. When called upon by the conveyancers to sign the necessary transfer documents, however, the seller failed to respond to their repeated efforts to make contact with her and also failed to sign the documents that had E been sent to her by the conveyancers. (Not without some justification, the buyer attributes the seller's apparent change in attitude to what is...